Does your development need Council approval?

It depends on what type of development it is. The planning controls for Muswellbrook set out where different types of development can be undertaken.

Once a dwelling is built, you can carry out some minor building works, like garden sheds or carports, without needing approval from Council.

For existing commercial properties you can undertake certain changes in use or signage without consent. These are examples of exempt development.

You can undertake some larger but straightforward development as complying development, which is a combined Development Application and Construction Certificate process, for which a certificate can be sought from a registered certifier.

If your proposal is not exempt or complying development, you will need to submit a Development Application to Council.

Research

You can use the ePlanning Spatial Viewer  to get information on your property including zoning, heritage and development controls to help you prepare your Development Application.

You can read local plans to find out how they will affect your proposal:

• The Muswellbrook Local Environmental Plan (LEP) sets out land zones and the types of development that may be undertaken.
• The Development Control Plan (DCP) provides the design controls for new development and any relevant Council policies.

All new houses must also meet a basic level of energy efficiency and are rated on factors such as the location of the home, hot water and energy systems, insulation and window area.

If you would like some help before you get started, you can complete a Pre-application Meeting Request form.

All Development Applications must be lodged online via the NSW Planning Portal.

Council’s Development Application Matrix and Supporting Document Requirements can assist you in determining what supporting information is required for your application, and Council requirements for supporting information lodged with development applications. It is your responsibility to provide all the required information and to make sure your DA provides enough detail to enable Council to make a decision. Getting this right will save you and Council time and money.

Once you have submitted your application online, you will receive an email notification requesting fees to be paid. Fees are outlined in Council’s Fees & Charges document and are based on the estimated cost of the development that you must provide. You need to ensure the cost estimates are accurate. Applications are not considered lodged until all fees have been paid.

Public Notification

Notification requirements are identified in Council’s Community Participation Plan. Proposals may be advertised in the local newspaper or on Council’s website, and owners in the vicinity of the site who may be affected are notified.

Notification fees are payable at the time of lodgement of the application. Where special advertising procedures are specified under the Environmental Planning and Assessment Regulation 2021 (e.g. designated development), an additional fee will be required to be paid.

During the notification period community members can give feedback about your proposal by making a written submission to Council. The assessing officer will review any submissions and, in some cases, may ask you to consider and respond to the issues raised before your application is determined.

Internal referrals

Depending on the type of development proposal, it may be necessary for the assessing officer to seek advice from officers of different areas of Council beyond the main town planning and building assessment officers. This can include engineers, compliance officers, heritage consultant and environmental health officers. An example is seeking advice on issues such as flood risk and traffic considerations.

The assessing officer will consider comments and recommendations from these Council officers before making a final recommendation.

External referrals

With some forms of development, specific legislation requires that Development Applications must be referred to certain NSW Government departments and agencies and that Council must take into consideration any comments received when determining the application.

An example of this type of development is one that will produce large traffic volumes that require access to a state highway. The State Environmental Planning Policy (Transport and Infrastructure) 2021 stipulates that Council must refer this type of application to the Roads and Maritime Service (RMS) and must take into consideration any comments received.

Referral to other agencies may include the NSW Department of Planning, Industry and Environment, NSW Police, Rural Fire Service and more. Any one of these agencies may need further information from you. We will advise you if this applies to your Development Application.

Some developments may also require a specific approval or licence from another authority (eg, the NSW Rural Fire Service or the NSW Department of Planning, Industry and Environment) under other legislation. This is known as integrated development and Council must refer the application to the relevant authority and seek its general terms of approval.

A planning officer will assess your application under Section 4.15 of the NSW Environmental Planning and Assessment Act 1979.

The assessment process involves considering:

• The provisions of any relevant planning instruments
• The Local Environmental Plan
• The Development Control Plan
• The likely environmental, social or economic impacts of the development in the locality
• The suitability of the site for the development
• Any submissions made in response to public notification of the development
• Any comments or approvals from any NSW Government agency
• The public interest

The determination stage is where a decision is made on your application. There are three possible outcomes for a DA:

• Development Consent: granted with conditions
• DA Refusal: with reasons
• Deferred Commencement Consent: a consent not operating until one or more important matters are resolved (not common)

Consent and Conditions

Your development consent is a legal document and is extremely important – you must build according to the conditions to avoid possible penalties or having to take costly rectification measures. As owner, you should carefully read and discuss these conditions with your certification and building team members, as the conditions may modify the proposal you submitted.

Some conditions are mandatory and must be applied on all development consents (e.g. your house must meet the Building Code of Australia).

Conditions of consent can modify your plans (e.g. reducing height, deleting elements, adding a privacy screen, requiring a retaining wall). These changes may increase the cost of your construction. Getting it right at the start will help minimise unexpected and unplanned costs because of conditions imposed. Conditions also require you to take steps prior to or at key stages (e.g. prior to the issue of a Construction Certificate, prior to/during construction and prior to the issue of an Occupation Certificate).

Refusal

If your DA is refused or granted with unacceptable conditions you have three options all of which will require some time and cost:

• Request a Review of Determination by Council (with amended plans, if you wish). A fee applies and you have six months from the date of the decision for this request to be lodged and also determined. You need to allow sufficient time for this.
• Commence an appeal to the Land and Environment Court. You have six months to lodge an appeal. The court hears from you or your representative, Council, relevant experts and potentially the community and determines whether the DA should be approved and what conditions should apply to it. The appeal process can be time consuming and costly, particularly if a matter is not resolved through mediation before going to a hearing.
• Modify and relodge your DA.

Modifications

If you wish to make changes to your approved plans (or the conditions), you can submit an application for a Modification of Consent (under section 4.55 of the Environmental Planning and Assessment Act 1979) through the NSW Planning Portal. This may be needed if you change your mind on particular aspects of the development.

The development you seek to modify must remain substantially the same as the development the original consent was granted for. If the application varies too much from the original consent a new DA must be lodged.

Modifications can be time consuming and cost additional fees. Getting the intended outcome right in the initial DA is much easier.

After receiving your development consent, you must do four things before you can start building:

1. Get a Construction Certificate from Council or a private certifier.
2. Appoint a Principal Certifier (PC) to monitor construction – this can be Council or an accredited certifier.
3. Give Council and the PC two days’ notice before you start work.
4. Complete any works listed in the ‘Prior to commencing work’ part of the consent.

Construction Certificate (CC)

The CC must be obtained from Council or a Registered Certifier and includes your detailed building plans/engineering details and specifications. The plans will most likely contain a lot more information than your approved DA plans to allow your builder to work directly from them.

The building must be consistent with the plans and the development consent. Any plan changes that are inconsistent with the DA plans would need to be assessed as to whether an application to modify the development consent is required.

In order to obtain the CC, you may need to meet certain requirements. These details are covered in the conditions of your development consent.

You can either choose Council or a Registered Certifier to issue your Construction Certificate. All certifiers are required to be registered with Fair Trading NSW. More information can be found here.

The Principal Certifier (PC)

The PC must be appointed by the ‘person having the benefit of the development consent’ – this means you as the owner and not your builder. It would probably be the same person or firm that issued your CC but does not have to be. Your PC can be a Private Certifier or Council.

The PC’s job is to work with you through the construction process and issue you with an Occupation Certificate (OC) when the work is completed. To make this decision, the PC inspects the development at various points in the build and ultimately ensures that the building is safe and fit to occupy and in accordance with the development consent and CC.

During construction

As owner, your role is to work with the PC and the builder, keeping an eye on the work (and the terms of your development consent), managing the site and organising inspections. The PC will brief the builder and you about the process. You have a role in ensuring that your team follows the procedures required for organising inspections. Missing an inspection can lead to delays. Inspections required generally include:

• Piers
• Slab
• Frame
• Stormwater
• Wet area
• Final

You should also keep your neighbours informed and report any complaints to the builder and the PC.

Keeping a close eye on the work and being sure it is consistent with the development consent and any conditions attached is very important. Orders can be issued by council to stop work and fix any errors. This can cost time and money or even lead to penalties. The EP&A Act specifies enforcement measures that can be applied if a development is not built in accordance with its consent.

The Occupation Certificate authorises the occupation and use of a new building or building section. For staged works, a Partial Occupation Certificate may be issued which allows you to occupy the completed part of the building. A Partial Occupation Certificate expires 5 years after the date of issue.

Depending on the particular Occupation Certificate sought, the PC must be satisfied the development meets various regulatory standards. These generally include that:

• A development consent is in force
• The design and construction of the building is not inconsistent with the development consent
• Any pre-conditions set out in the consent or requirements of planning agreements have been satisfied
• A Construction Certificate has been issued
• That the building is suitable for occupation (in accordance with its BCA classification)

The issue of the final Occupation Certificate is the last step in the formal DA and construction process.